Elder Neglect Blog by Felicia Curran, Esq. for Boxer & Gerson, LLP2008-05-14T01:14:19ZFelicia CurranCopyright 2008, Felicia CurranSPHPBLOGIs This Anyway to Get Into A Nursing Home?: Did Medicare Payment Rules Motivate Son To Assault Dad As Way to Get Paid Nursing Home Stay?San Francisco Chronicle ("Son Didn't Use His Head In Trying To Put Father In Nursing Home") reported on Friday that a Bay Area man is in jail, charged with attempted murder for hitting his elderly father on the head with a hammer, in an ill-conceived attempt to get his father admitted to a nursing home. The elderly father was treated at the hospital for cuts to the head, and then released home.
"[The man] was under a belief, we don't know why, that you can't go straight into a nursing home without being in the hospital," said Steve Wagstaffe, San Mateo County's chief deputy district attorney. "He thought, 'I can overcome that problem. I'll put him in the hospital.'"
Although the son's conduct was criminal, there was a method to his madness. Nursing charge hundreds and hundreds of dollars a day, something out of the reach of the average person. Medicare, however, WILL pay for up to 100 days in a nursing home, but only if the patient comes to the nursing home from a three-day stay in a hospital. Medicare pays in full for Day 1 through 20; Day 21 through day 100 are subject to a $124 per day co-payment by the patient.
Thus, was the son trying to get a Medicare-paid stay for his father? Quite possibly.
If THAT is the son's excuse for hitting his father, what is our excuse as a nation for failing to provide free universal health coverage? This type of incident would not happen in Canada or in Europe, because in those countries anyone who needs health care --in a nursing home, hospital, or wherever -- can get it, free of charge.
Although you may not like Michael Moore, this is the point that he is very aptly making in his movie SICKO, which compares our healthcare system with Canada's and Europe's. His point is that health care should be recognized as a basic right - like access to the police or the fire department -- that everyone should have access to, regardless of their ability to pay.
The movie SICKO is being released on DVD on November 8. If you haven't seen it, you should. You won't look at health care in this country the same way after you see it, I promise you.
To view a trailer/preview of SICKO, double-click below on the picture:
Felicia Curran www.boxerlaw.com www.elderadvocacyblog.com *]]>http://www.elderadvocacyblog.com/index.php?entry=entry071020-1634142007-10-20T00:00:00Z2007-10-20T00:00:00ZGovernor Schwarzeneger "Terminates" AB 399: Last Minute Veto of Law That Would Have Protected Nursing Home Residents, Passed By Legislature 117-1 California Advocates for Nursing Home Reform (CANHR), a nonprofit group that spearheaded the law Arnold just vetoed, has issued the following press release:
"FOR IMMEDIATE RELEASE October 17, 2007
Governor Vetoes Bill to Protect Nursing Home Abuse Victims
San Francisco -- On Sunday night, just hours before it would become law, Governor Schwarzenegger vetoed AB 399, striking down an immensely popular bill to aid elder abuse victims in nursing homes by improving investigations of abuse and neglect. The bill would have required the California Department of Public Health to complete investigations within reasonable time limits and to notify complainants of findings.
Abuse and neglect have reached crisis proportions in California nursing homes. Complaints and facility reports of abuse and neglect have more than doubled in recent years and continue to grow at double-digit rates each year. More than 15,000 complaints and facility reports are expected to be investigated this year.
Introduced by Assembly Member Mike Feuer, AB 399 responds to the California Department of Public Health's longstanding failures to conduct timely and effective investigations of nursing home complaints. The failures are well documented in a series of government reports, including an April 2007 report by the California State Auditor. It shows the Department failed to timely complete more than 60 percent of 15,275 investigations conducted between July 2004 and April 2006, and that more than 500 complaints remained open for more than one year.
For nursing home residents, the broken investigation system is a matter of life and death. The slow investigations subject residents to continued mistreatment and also compromise the Department's ability to collect evidence. Most nursing homes face no consequences for abuse or neglect because the Department substantiates so few complaints (only one in six according to a 2007 study by the California Healthcare Foundation).
Even complaints involving deaths suffer extreme delays. This is especially true in cases involving AA citations, which involve a finding that neglect or abuse led to the death of a nursing home resident. Typical delays range from one to two years. See attached CANHR summary of recent AA citations.
"The veto is devastating to elder abuse victims in nursing homes," said Patricia McGinnis, CANHR's Executive Director. "It is shocking that the Governor won't commit to timely investigations of abuse and neglect."
Other than the Governor [picture here with President Bush], AB 399 faced no opposition. The California Legislature voted 117 - 1 in favor of it. AB 399 is supported by dozens of organizations, the nursing home industry, and citizens throughout California who see it as an historic opportunity to restore integrity to California's nursing home complaint investigation system.
For more information contact: Pat McGinnis, Executive Director, CANHR (415) 974-5171 Michael Connors, Advocate (626) 796-6178 California Advocates for Nursing Home Reform (CANHR) www.canhr.org"
Email the Governor and tell him what you think and that you vote - click here.
Felicia Curran www.elderadvocacyblog.com www.boxerlaw.com *]]>http://www.elderadvocacyblog.com/index.php?entry=entry071018-2006032007-10-19T00:00:00Z2007-10-19T00:00:00ZBoxer & Gerson Elder Abuse Lawyer Jean Hyams Helps Client Oliver Hill Achieve Justice With Jury Verdict Please help me congratulate two lawyers in our firm, Jean Hyams and Darci Burrell, on their great victory yesterday in obtaining a $1.27 million jury verdict on behalf of their client, Oliver Hill, in Alameda County Superior Court. The jury found that the defendant Bay Area Rapid Transit District (BART) had repeatedly retaliated against the plaintiff, Mr. Hill, after he complained about racial harassment by a co-worker.
Courageous victims like Mr. Hill need to be congratulated also, on sticking their neck out and risking further retaliation by filing suit. In this case, the jury sent him and BART a message that what BART did is unacceptable. After many years of mistreatment by BART, it's a great vindication for him.
Jean Hyams (pictured above) is a partner with our firm, Boxer & Gerson LLP, and practices in the employment law and elder abuse practice groups. She is a very tenacious and compassionate advocate for her clients. Many lawyers would have declined to take on Mr. Hill's case because he had no wage loss, and because the defendant is a public entity (hence no punitive damages award would be permitted). Jean and Darci are fearless, and jumped in to help him hold BART accountable for its condoning of racism and its retaliation against him when he complained. BART will think twice about discriminating and retaliating against its employees now that they have been found guilty in court.
The judge is expected to make an additional order that the defendant also pay Mr. Hill’s attorney fees.
In civil rights cases such as Mr. Hill's, and under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), the law requires the losing defendant to pay the plaintiff/victim's attorney fees on top of whatever damage award is made for the plaintiff's injuries, so that the plaintiff will not have to pay his or her lawyers out of his or her own pocket. Shifting of the victim's attorney fees on to the losing defendant is intended by the legislature to further deter violation of these important laws and to make it easier for the victim to obtain legal representation.
Felicia Curran www.boxerlaw.com www.elderadvocacyblog.com *]]>http://www.elderadvocacyblog.com/index.php?entry=entry071017-1756492007-10-17T00:00:00Z2007-10-17T00:00:00ZStanford Scientists Report Development of Blood Test for Alzheimer's That May Predict Disease Years Before Symptoms The New York Times reports that Stanford scientists believe that they have developed a blood test that can accurately diagnose Alzheimer’s disease years before symptoms of truly debilitating memory loss are apparent. Currently, Alzheimer's disease can only be diagnosed definitely after death through autopsy, and with clinical probability through a battery of memory and behavioral tests.
The test proceeds on the assumption that the brain of a person who is developing Alzheimer's sends out signals to the body's immune system, releasing certain proteins into the blood. The blood test looks for the presence of 18 proteins in the blood thought to carry that message. The test is reported to be 90 percent accurate in distinguishing the blood of people with actual Alzheimer’s from the blood of those without the disease, and to have an accuracy rate of 80 percent in predicting which patients with mild memory loss would go on to develop Alzheimer’s disease two to six years later.
The studies need to be replicated in another lab, and it is likely to be a few years before the test would be available to the average person at their doctor's office, but the test may be available next year on a research study basis.
It is also hoped that this will be the first step in finding a cure for the disease.
Felicia Curran www.boxerlaw.com www.elderadvocacyblog.com *]]>http://www.elderadvocacyblog.com/index.php?entry=entry071017-1756162007-10-17T00:00:00Z2007-10-17T00:00:00ZDown But Not "Out" In the Nursing Home: Times Article Tackles Issues of Discrimination Against Gay Elders In Nursing Homes And Assisted Living Facilities If gay men and lesbian women face discrimination when they are young, active, and able to take care of themselves, what happens as they age, lose their independence, and need to enter nursing homes and assisted living facilities? Check out an article in yesterday’s New York Times ( "Aging and Gay, and Facing Prejudice and Uncertainty in the Twilight Years" by Jane Gross) to get a taste of what homophobia is like in the nursing home setting. The picture isn’t pretty.
The article quotes experts as saying that most gay elderly do not declare their identity when they enter the nursing home. Instead, for fear of prejudice and isolation, they retreat back to the invisibility that was necessary for most of their lives. They introduce their partner as “their brother” to nursing home staff and to other residents to avoid being shunned. They avoid having their openly gay friends come to visit, and they hide any memorabilia that may disclose that they are gay.
77-year-old lesbian Jalna Perry (pictured here), says that her guard was up all the time when she was in a nursing home or assisted living facility, for fear that she would be shunned by care givers and other residents.
Living in the nursing home's closet takes its toll. The article describes how gay elderly often fall into depression more quickly, and have a higher incidence of premature death than heterosexual elders.
On the other hand, stepping out of the closet may also cut short the gay elder’s life. When one openly gay man entered a nursing home on the East Coast, he was moved off the regular patient floor, in response to the homophobia of other residents and families, and housed with patients with severe disabilities or dementia. He hung himself in despair before the nursing home could be persuaded to treat him decently.
When Gloria Donadello (pictured here), entered a nursing home, her new roommate greeted her with the words, “Get that man out of my room.” That was enough for Gloria. She moved into an adult-assisted living center that specializes in gay and lesbian residents.
What if your community doesn’t have a care facility that promotes itself as friendly to gay seniors? Bruce Steiner, 76, pictured at the top, with his partner Jim Anthony, 71, said that his approach is to essentially to come as he is – “visit several nursing homes” and give “them the opportunity to encourage or discourage [you].”
At least part of the problem is that nursing homes and assisted living facilities don’t usually make an effort to ask about sexual orientation, or to prepare staff members and residents for the possibility that some residents may be gay. In California, we have made a start to address the issue of sensitivity to gay elders with the “Older Californians Equality and Protection Act,” passed in 2006. The law requires state aging agencies to provide sensitivity training and support for senior services for gay elders. For example, nursing home admissions staff may receive training in how to interview prospective residents in a way that respects each person's sexual orientation. Or nursing home residents may receive support to help familiarize themselves with issues relating to sexual orientation differences.
What can you do to help gay elders? For starters, don’t make assumptions that each elder you meet has the same sexual orientation as you do, and respect their differences. Correct your family and friends if they make homophobic remarks. Put yourself in the gay elder's shoes. And support laws in your community to prohibit discrimination in nursing homes and assisted living facilities based on sexual orientation sexual identity. In California, we have the Civil Rights Housing Act of 2006, which prohibits discrimination in housing based on sexual orientation and sexual identity, and we also prohibit state contractors from such discrimination, which covers nursing homes receiving state Medical funds.
The Times' website has a terrific multimedia file containing DVD interviews with the elders interviewed in the article. Listen and hear them describe their experiences in their own words. The website will also refer you to resources relating to gay elderly - click here. It's a great resource.
Felicia Curran www.elderadvocacyblog.com www.boxerlaw.com *]]>http://www.elderadvocacyblog.com/index.php?entry=entry071010-1449232007-10-10T00:00:00Z2007-10-10T00:00:00ZPrivate Medicare Drug Plans Are The Subject of Critical Government Audits The chickens are coming home to roost as a result of President Bush’s mistake in privatizing the Medicare Part D Prescription Drug Benefit.
A New York Times article reviews audits done by the government relating to private Medicare plans, summarizing their findings by saying that “tens of thousands of Medicare recipients have been victims of deceptive sales tactics and had claims improperly denied by private insurers that run the system’s huge new drug benefit program and offer other private insurance options encouraged by the Bush administration.”
If you or a family member have a Medicare plan provided by these companies:
UnitedHealth Wellpoint Sierra Health Services Humana The Sterling Life Insurance Company MemberHealth Bravo Health
I suggest that you read the article, which describes how these private companies have adopted unscrupulous business practices resulting in delaying access to medications urgently needed by Medicare patients.
For example, the article says that in March 2007, Sierra Health Services ended drug coverage for more than 2,300 Medicare beneficiaries with H.I.V./AIDS, alleging that the patients had not paid their premiums. In fact, according to the audit, in many cases, the premiums had been paid, and beneficiaries had canceled checks to prove it. Sierra Health Services had canceled their drug coverage to avoid having to pay for the costly drugs that the AIDS patients needed. The patients were reinstated on the Sierra drug plan only after repeated requests from federal officials.
Read the New York Times article online - click here.
Felicia Curran www.boxerlaw.com www.elderadvocacyblog.com *]]>http://www.elderadvocacyblog.com/index.php?entry=entry071007-1744072007-10-07T00:00:00Z2007-10-07T00:00:00ZTell Department of Health Services to "Stop Whining" - Arnold, Sign Assembly Bill 399! When Arnold Schwarzenegger played Los Angeles narcotics detective John Kimble in Kindergarten Cop, he was said to be “the toughest undercover cop in LA. If you're bad, he'll know it. If you're hiding something, he'll find out. If you cheat, he can tell.”
Some of Arnold’s funniest lines in the movie were when Arnold, as Detective Kimble, took charge and demanded action. Remember such lines as:
“You lack discipline!”
“Well I've got news for you! You are mine now! You belong to me!”
“Who is your daddy, and what does he do?“
"You tell him you didn't do your homework"
“I'm going to ask you a bunch of questions, and I want them answered immediately.”
“Stop whining!”
Arnold is now governor of our state. Unlike Detective John Kimble, Governor Schwarzenegger seems ready to accept excuses for inept and incompetent performance by government agencies that operate under his command. There is a bill sitting on Arnold’s desk, Assembly Bill 399 (Feuer), passed by the California legislature, that only requires the governor’s signature to become law. The bill would require the California Department of Health Services to complete investigations of complaints against nursing homes within 40 business days. The governor’s spokesperson says that he “hasn’t yet taken a position on whether he will sign the bill.”
What is he waiting for? All I can say is it’s time for the Governor to sign that bill and to tell the Department of Health Services to “stop whining.”
The Los Angeles Times did an article describing the types of delays that have prompted the bill.
In July 2006, 81-year-old Octavio “Nito” Jimenez (pictured here) was rushed from an Oxnard nursing home, Maywood Acres, by ambulance to an acute care hospital, where doctors found advanced, infected wounds on his heel and buttocks. The nursing home had told Octavio’s family only that he had “a little sore” on his foot.
His granddaughter Josie Valdez (pictured here) asked the county Ombudsman to investigate. The Ombudsman referred the matter to the state Department of Health Services, stating, “the family is very concerned that they will lose their father from neglect.” Unfortunately, they were right. A few days later, Octavio passed away from an apparent heart attack. In the 15 months since the complaint was filed, the Department of Health Services still hasn’t investigated the complaint. “To this day, nobody has been able to tell me what the findings were.” Josie Valdez is quoted as saying. “It hurts families and it hurts the person unable to care for themselves.”
The Department of Health Services has proved time and time again that they will not complete investigations on their own accord. They need the fixed deadines provided by 399 to force them to complete investigations on time.
“* One year to investigate and impose a $100,000 fine against Westgate Gardens Care Center after an unattended 77-year-old resident choked on a grape and later died. Instructions in the resident's records indicated she was not to be served whole fruits or left alone when she ate.
* Eleven months to investigate and fine Beverly Healthcare Center in Stockton $80,000 after its air conditioner failed during a heat wave in July 2006. One resident died from hyperthermia caused by the high temperatures, and another resident was taken to the hospital with the same condition, the state said. The home has since changed its name to Golden Living Center-Stockton.
* Fourteen months to cite Manorcare Health Services in Hemet after an 83-year-old dementia patient fell out of his wheelchair, suffered a brain hemorrhage and died. He was supposed to be placed in chair with a lap cushion to prevent falls. The home was fined $75,000.
As Assemblyman Feuer says, the bill is needed to quickly flag problems at nursing homes and ensure they are corrected.”
"A timely investigation with timely results can make the difference literally between life and death sometimes," Feuer said. "Forty days is plenty of time to conduct a meaningful, finely grained, detailed investigation."
Arnold, residents of nursing homes need your help. Tell Department of Health Services, “Don’t procrastinate,” “I own you. You are mine now.” Give them some deadlines.
Let the Governator know what you think - send him an email – click here.
Felicia Curran www.boxerlaw.com www.elderadvocacyblog.com *]]>http://www.elderadvocacyblog.com/index.php?entry=entry071004-1920452007-10-05T00:00:00Z2007-10-05T00:00:00ZPrivate Investor Groups Are Engaging in Takeover of Nursing Home Industry, To Detriment of Nursing Home Residents"At Many Nursing Homes, More Profit and Less Nursing." The article describes how consortiums of private investors such as Warburg Pincus and the Carlyle group are buying up nursing homes, and in the process, harming the residents of the nursing homes they acquire.
These private investment companies are even more profit-driven than the large publicly traded corporations that sold them the nursing homes. The Times’ analysis of records collected by the Centers for Medicare and Medicaid Services shows that “at 60 percent of homes bought by large private equity groups from 2000 to 2006, managers have cut the number of clinical registered nurses, sometimes far below levels required by law. . . . During that period, staffing at many of the nation’s other homes has fallen much less or grown.”
“The first thing owners do is lay off nurses and other staff that are essential to keeping patients safe,” says Professor Charlene Harrington, a professor of nursing at the University of California, San Francisco. Nursing home owners have made “a lot of money by cutting nurses, but it’s at the cost of human lives,” she says.
The typical nursing home acquired by a large investment company scored worse than the national averages on 12 out of 14 quality indicators that government regulators use to evaluate nursing homes. These privately owned homes also have far higher rates of citations and deficiencies than do homes owned by publicly held corporations.
One nursing home profiled by the Times is Habana Health Care Center in Florida (formerly owned by Arkansas-based Beverly Enterprises, Inc.). Within a year of being bought by a private investment group, the investors had cut the number of clinical registered nurses in half. They also slashed budgets for nursing supplies, resident activities and other services, and cut staffing and 48 other nursing homes. A former nursing manager of the home told the Times that “the [new] owners wouldn’t let us hire people. . . . We told the higher-ups we needed more staffing but they said we should make do.”
One of the victims was Mrs. Alice Garcia (pictured here with her grand-daughter). Within months of moving into Habana Health Care Center, she sustained repeated falls. The staff would also reportedly leave her seated in wet adult-diapers, and ignored her daughter’s repeated complaints that they were neglecting her care. Five months later, her daughter discovered “that her mother had a large bedsore on her back that was oozing pus.” The doctor at the hospital to which Alice was taken reportedly said she should have been given treatment for the pressure ulcer “much earlier.” Three weeks later, she passed away.
When her daughter (Vivian Hewitt, pictured here) sued the nursing home for neglecting Alice, her lawyer found out that the private investment group had set up layer upon layer of corporate structures that insulated the investors from legal liability for the injuries to their residents. These corporate shell games “unjustly protect investors who profit while care declines.” The corporation who is listed as the owner with the licensing agency does not have any assets, so even regulators cannot collect fines that are levied at the nursing home.
Although only 10 percent of nursing homes nation-wide are estimated to be owned by private investment groups, this is an alarming trend that demands action from our elected officials. Most of these nursing homes are paid with government funds, by Medicare or Medicaid, and the government needs to demand accountability. In fact, the government pays nursing homes an estimated $75 billion a year, under Medicare and Medicaid programs, according to the article. If a company receives government money for care provided at a nursing home, the company should be responsible for paying any fines levied by the government regulators and for any court judgments entered on behalf of neglected residents and their families.
What can you do? If you or your loved one lives in a nursing home, skilled nursing facility, or assisted living facility, find out from the licensing agency who the owner of record is. Compare that with the names of the corporations on the door, the names of the corporations that manage the facility, and own the building or land where the nursing home is located. Ask the nursing home employees the name of the company that writes their payroll check. If there are multiple corporations involved, that tells you that a shell game may be going on to insulate the owners from liability. Corporations who feel that they have nothing to lose are more likely to cut corners on care.
Felicia Curran www.elderadvocacyblog.com www.boxerlaw.com *]]>http://www.elderadvocacyblog.com/index.php?entry=entry070924-1913042007-09-25T00:00:00Z2007-09-25T00:00:00ZWho Has Standing to Bring an Elder Abuse Lawsuit after the Elder’s Death?: Amendment to California’s Elder Abuse Law Will Help Families Hold Abusers Accountable The California Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) will be amended effective January 1, 2008, to expand and clarify the list of who may bring a lawsuit for elder abuse, abandonment, or neglect after the death of the abused elder. Currently, the law provides that after the elder’s death, the right to bring a lawsuit under EADACPA transfers to the personal representative of the deceased’s estate, or if there is none, to the person or persons entitled to succeed to the decedent’s estate. See Welfare & Institutions Code Section 15657.3(d). Yet, what if there is a personal representative, but that person does not wish to pursue an elder abuse lawsuit, even though other family members do? Or, worse still, what if the deceased was a victim of abuse by the personal representative? Or the personal representative used undue influence over the elder to have him- or her-self appointed as personal representative? In such cases, the very person who would be a defendant in the elder abuse lawsuit has the power, as personal representative, to block the lawsuit from going forward.
A case in point is the Estate of Lowrie case. There, a son of the deceased elder, Laura Marie Lowrie, was appointed her first successor trustee. Laura Marie’s granddaughter was second successor trustee and beneficiary. After Laura Marie's death, her granddaughter filed an elder abuse lawsuit against the son, seeking findings that he had abused Laura Marie prior to her death. The court found that the son had financially and physically abused his mother, and awarded damages to the granddaughter. The son appealed, contending the granddaughter had no standing to bring an elder abuse lawsuit, because he was his mother’s personal representative, and thus, the only person empowered under EADACPA to bring a elder abuse lawsuit.
The Court of Appeal held that the granddaughter did have standing to sue as a plaintiff under EADACPA, and that the standing provisions of EADACPA must be read so as to “deter, not encourage elder abuse.” The Lowrie case is frequently used by lawyers representing families to provide a basis to pursue elder abuse cases on behalf of family members other than the deceased’s personal representative.
The amendments to EADACPA will codify the Lowrie court's holdings and provide more flexibility to family members who wish to pursue elder abuse lawsuits after the elder’s death. The text of the new statute, which takes effect January 1, 2008, is as follows:
“Section 15657.3 of the Welfare and Institutions Code is amended to read:
15657.3. (a) The department of the superior court having jurisdiction over probate conservatorships shall also have concurrent jurisdiction over civil actions and proceedings involving a claim for relief arising out of the abduction, as defined in Section 15610.06, or the abuse of an elderly or dependent adult, if a conservator has been appointed for plaintiff prior to the initiation of the action for abuse.
(b) The department of the superior court having jurisdiction over probate conservatorships shall not grant relief under this article if the court determines that the matter should be determined in a civil action, but shall instead transfer the matter to the general civil calendar of the superior court. The court need not abate any proceeding for relief pursuant to this article if the court determines that the civil action was filed for the purpose of delay.
(c) The death of the elder or dependent adult does not cause the court to lose jurisdiction of any claim for relief for abuse of an elder or dependent adult.
(d) (1) Subject to paragraph (2) and subdivision (e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent. If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met:
(A) An intestate heir whose interest is affected by the action. (B) The decedent's successor in interest, as defined in Section 377.11 of the Code of Civil Procedure. (C) An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph. As used in this subparagraph, "an interested person" does not include a creditor or a person who has a claim against the estate who is not an heir or beneficiary of the decedent's estate.
(d)(2) If the personal representative refuses to commence or maintain an action or if the personal representative's family or an affiliate, as those terms are defined in subdivision (C) of Section 1064 of the Probate Code, is alleged to have committed abuse of the elder or dependent adult, the persons described in subparagraphs (A),(B), and (C) of paragraph (1) shall have standing to commence or maintain an action for elder abuse. Nothing in this paragraph shall require the court to resolve the merits of an elder abuse action for the purposes of finding that a plaintiff who meets the qualifications of subparagraphs (A), (B), and (C) of paragraph (1) has standing to commence or maintain such an action.
(e) If two or more persons who are either described in subparagraphs (A), (B), or (C) of paragraph (1) of subdivision (d), or a personal representative claim to have standing to commence or maintain an action for elder abuse, upon petition or motion, the court in which the action or proceeding is pending, may make any order concerning the parties that is appropriate to ensure the proper administration of justice in the case pursuant to Section 377.33 of the Code of Civil Procedure.
(f) This section does not affect the applicable statute of limitations for commencing an action for relief for abuse of an elderly or dependent adult.”
The amendment will provide the flexibility needed to give interested family members the ability to bring elder abuse lawsuits and hold wrongdoers accountable. Thanks to Senator Ellen Corbett and her legislative staff for sponsoring this important bill.
Felicia Curran www.elderadvocacyblog.com www.boxerlaw.com *]]>http://www.elderadvocacyblog.com/index.php?entry=entry070827-1257072007-08-27T00:00:00Z2007-08-27T00:00:00ZMedicare Tells Hospitals: "We Won't Pay You For Making Patients Sick"Medicare has announced that it will no longer pay hospitals for the costs of treating injuries and illnesses resulting from errors made by the hospital, according to Robert Pear of the New York Times. “If a patient goes into the hospital with pneumonia, we don’t want them to leave with a broken arm,” said Herb B. Kuhn, acting deputy administrator of the Centers for Medicare and Medicaid Services.
“Under the new rules, to be published next week, Medicare will not pay hospitals for the costs of treating certain ‘conditions that could reasonably have been prevented.’”
Among the conditions that will be affected are falls, mediastinitis (an infection that can develop after heart surgery), urinary tract infections that result from improper use of catheters, pressure ulcers, and vascular infections that result from improper use of catheters.
In addition, Medicare says it will not pay for the treatment of “serious preventable events” like falls, leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products.”
And if you’re worried that the hospitals will bill the patient for charges that Medicare refuses to pay, the rules make that forbidden. “The hospital cannot bill the beneficiary for any charges associated with the hospital-acquired complication,” the final rules say.
Consumer advocates reportedly have been urging Medicare to adopt these rules for twenty years. The reason being that if hospitals know that they won’t get paid for making you sick, they will take precautions to prevent these illnesses and accidents.
The rules don't take effect until October 2008.
The Centers for Disease Control and Prevention estimates that “patients develop 1.7 million infections in hospitals each year, and it says those infections cause or contribute to the death of 99,000 people a year — about 270 a day.”
“Hundreds of thousands of people suffer needlessly from preventable hospital infections and medical errors every year,” said Lisa A. McGiffert of Consumer’s Union. “Medicare is using its clout to improve care and keep patients safe. It’s forcing hospitals to face this problem in a way they never have before.”
The change in the rules is coming too late for Margaret M. O’Neill(pictured here with her daughter Eileen O’Neill-Pardo). In 2004, Margaret died of an infection that developed during intestinal surgery at a Seattle hospital.
“The operation — to remove scar tissue — was successful, but the patient died,” Eileen said. “The hospital staff did not take steps to control the infection, which took over her body. My mother died less than a week after the operation.”
Studies have shown that well-established infection-control practices, "like covering doctors and patients from head to toe with sterile gowns and sheets while the catheters were inserted, can greatly reduce the incidence of hospital-acquired infections."
Medicare absolutely made the right call in putting pressure ulcers on the list of preventable conditions. Studies have repeatedly showed that hospital-acquired pressure ulcers can be virtually eliminated if correct precautions are taken by the hospital.
Presumably the rules also apply to nursing homes. If so, then Medicare will refuse to pay nursing homes for treatment of pressure ulcers that are acquired in the nursing home, or where the nursing home lets the existing pressure ulcers get worse. About time!
There are many unanswered questions, but one thing is for sure. Hospitals will begin to do things differently if they are not paid for their mistakes. The new Medicare rules will also provide patients and their lawyers with a formidable weapon to use in a neglect lawsuit against the hospital or nursing home. If Medicare deems that the expense of treating the illness or injury was preventable, that is powerful evidence that the hospital or nursing home was negligent in letting the illness or injury develop.
man is in jail, charged with attempted murder for hitting his elderly father on the head with a hammer, in an ill-conceived attempt to get his father admitted to a nursing home. The elderly father was treated at the hospital for cuts to the head, and then released home.
Although the son's conduct was criminal, there was a method to his madness. Nursing charge hundreds and hundreds of dollars a day, something out of the reach of the average person. Medicare, however, WILL pay for up to 100 days in a nursing home, but only if the patient comes to the nursing home from a three-day stay in a hospital. Medicare pays in full for Day 1 through 20; Day 21 through day 100 are subject to a $124 per day co-payment by the patient. 
Although you may not like Michael Moore, this is the point that he is very aptly making in his movie SICKO, which compares our healthcare system with Canada's and Europe's. His point is that health care should be recognized as a basic right - like access to the police or the fire department -- that everyone should have access to, regardless of their ability to pay.
AB 399 faced no opposition. The California Legislature voted 117 - 1 in favor of it. AB 399 is supported by dozens of organizations, the nursing home industry, and citizens throughout California who see it as an historic opportunity to restore integrity to California's nursing home complaint investigation system.
Superior Court. The jury found that the defendant Bay Area Rapid Transit District (BART) had repeatedly retaliated against the plaintiff, Mr. Hill, after he complained about racial harassment by a co-worker. 
The test proceeds on the assumption that the brain of a person who is developing Alzheimer's sends out signals to the body's immune system, releasing certain proteins into the blood. The blood test looks for the presence of 18 proteins in the blood thought to carry that message. The test is reported to be 90 percent accurate in distinguishing the blood of people with actual Alzheimer’s from the blood of those without the disease, and to have an accuracy rate of 80 percent in predicting which patients with mild memory loss would go on to develop Alzheimer’s disease two to six years later. 
are gay. 
When Gloria Donadello (pictured here), entered a nursing home, her new roommate greeted her with the words, “Get that man out of my room.” That was enough for Gloria. She moved into an adult-assisted living center that specializes in gay and lesbian residents.
In California, we have the Civil Rights Housing Act of 2006, which prohibits discrimination in housing based on sexual orientation and sexual identity, and we also prohibit state contractors from such discrimination, which covers nursing homes receiving state Medical funds. 
ambulance to an acute care hospital, where doctors found advanced, infected wounds on his heel and buttocks. The nursing home had told Octavio’s family only that he had “a little sore” on his foot. 
“The first thing owners do is lay off nurses and other staff that are essential to keeping patients safe,” says Professor Charlene Harrington, a professor of nursing at the University of California, San Francisco. Nursing home owners have made “a lot of money by cutting nurses, but it’s at the cost of human lives,” she says.
One of the victims was Mrs. Alice Garcia (pictured here with her grand-daughter). Within months of moving into Habana Health Care Center, she sustained repeated falls. The staff would also reportedly leave her seated in wet adult-diapers, and ignored her daughter’s repeated complaints that they were neglecting her care. Five months later, her daughter discovered “that her mother had a large bedsore on her back that was oozing pus.” The doctor at the hospital to which Alice was taken reportedly said she should have been given treatment for the pressure ulcer “much earlier.” Three weeks later, she passed away.
When her daughter (Vivian Hewitt, pictured here) sued the nursing home for neglecting Alice, her lawyer found out that the private investment group had set up layer upon layer of corporate structures that insulated the investors from legal liability for the injuries to their residents. These corporate shell games “unjustly protect investors who profit while care declines.” The corporation who is listed as the owner with the licensing agency does not have any assets, so even regulators cannot collect fines that are levied at the nursing home.
“The operation — to remove scar tissue — was successful, but the patient died,” Eileen said. “The hospital staff did not take steps to control the infection, which took over her body. My mother died less than a week after the operation.”